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What is Tort Reform? – Part II

In our last post on this subject we explained what is tort and briefly “touched” on tort reform as it refers to medical malpractice, specifically in the State of Florida. In this post we will talk about those who propose tort reform and the specific changes they are proposing (or already implementing) and some of their “convincing” arguments on why we need tort reform.

Who Wants Tort Reform And Why

Insurance companies, the medical industry and big business in general are among those that want to change the current tort system. Among the “reasons” they raise in support of why the system should be changed, they claim that the so called “frivolous” lawsuits increase the cost of litigation and compensation payouts, raising the cost of insurance because of how much money they have to spend in insurance premiums.

As we pointed out in the previous post, there are no such frivolous lawsuits in medical malpractice: these cases are so expensive to litigate (among other things because of the cost of hiring medical experts) that no plaintiffs’ law firm would dare to pursue a case unless they were as certain as anyone can possibly hope to be of the validity of their client’s injuries and the defendant’s responsibility those injuries.

Also, as related to medical costs in this country, proponents of tort reform claim that frivolous lawsuits increase the cost of healthcare because of the amounts of money the medical industry has to spend in malpractice insurance premiums. However, according to Bloomberg Businessweek, tort reform would have no noticeable effect in this area. A study by the Congressional Budget Office shows that medical malpractice cases increase the cost of healthcare by only 1% to 2%.

“Benefits” Of Tort Reform

Proponents claim that moneys saved by reforming tort law could be used to provide better quality healthcare services. However, it is unlikely that such savings would be invested in that manner… The insurance industry in Texas saved about $600 million thanks to former President George W. Bush’s reform of tort law when he was Governor of the Lone Star State. However, policy dollars necessary to cover loses only fell from 70.1 cents in 1993 to 58.2 cents in 1998. Lesson: savings are more likely to be used to improve the profit picture so that shareholders get higher dividends and stock prices increase. Please note that while in the White House, former President George W. Bush proposed a nationwide cap of $250,000.00 on medical malpractice cases damages for pain & suffering regardless of the loss.

How To Reform It: Limiting Damages

Other proposals also move to limit or place caps on non economic damages such as pain and suffering, disfigurement, loss of enjoyment of life, physical impairment and loss of a loved one, which are not easy to quantify by a dollar amount. The effect of damages sustained by an injured person or those who have lost a loved one varies in every case. For example, why limit a person’s damages if they have been paralyzed? Is that fair? Citizens (jurors) are in a much better position to decide what amount of monetary damages will give a claimant justice.

The most significant arguments in favor and against these caps have a constitutional base. Those who favor cap reforms argue that striking down legislatively imposed limitations on damages violates the concept of separation of powers (i.e., legislative v. judicial). Curiously, those who oppose a limitation of damages also claim that a violation of the constitutional concept of separation of powers indeed occurs when the legislature abrogates functions traditionally reserved to juries, which constitutes a violation of the right of trial by jury.

Another Way To Reform It: Reducing The Statutes Of Limitations

Another form of tort reform is reducing the statute of limitations. These statutes establish the time a plaintiff has to file suit, in this case, in a tort action. The statute of limitation to file an action for damages against one’s own insurance carrier based upon a breach of contract has traditionally been 5 years. However, recent legislation has limited the statute of limitations to file windstorm or hurricane damages to 3 years. State lawmakers inTallahassee have passed yet another anti-consumer and pro business law in an effort to further bolster insurance company profits.

We will discuss other areas of tort law that are being “reformed” in coming posts.

If you or a loved one have been the victims of someone else’s negligence, you should immediately contact a law firm experienced in handling these cases. The Miami Dade County Medical Malpractice Law Offices of Greenberg, Stone & Urbano has throughout the years represented many clients involved in medical malpractice cases, traumatic brain injuries and serious personal injuries. Visit our website to learn more about our firm and contact us today for a free consultation.

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